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to have been subsequently arranged between the parties, that there will be no appeal from the decision, and the
point decided should be noticed by those who have to adASHWORTH v. MUNN, C.A., 28 W. R. 965.
vise as to, or to prepare, settlements based on the com.
mon but troublesome method of provision for wife and The contention of the appellants in this case was
children by insurance. founded on a tolerably obvious fallacy. Real estate belonging to a partnership is treated in equity as personalty as between the real and personal representatives
IN RE KNOWLES, ROOSE v. CHALK, V.C.M., of the partners. Why? Because the share of a partner
28 W. R. 975. is nothing more than his proportion of the partnership
The first question here was whether the Act 11 Geo. 4, assets after they have been turned into money and
| and 1 Will. 4, c. 40, affects the title of an executor, as applied in liquidation of the partnership debts. In other
against the Crown, to the undisposed-of residue of the words, the right of the partner is not to a share of the
testator's personal estate. There could not be much land, but to a share of the proceeds of sale of the land. In
difficulty as to the answer. The Act, it will be reAshworth v. Munn it was contended that the share of
membered, by section 1, provides that when any person a partner in real estate belonging to the partnership was
shall die, having by will or codicil appointed any executor, to be considered as personal estate for all purposes,
such executor shall be deemed by courts of equity to be and not only as personal estate, but as pure personalty
a trustee for the person or persons (if any) who would be within the Charitable Uses Act (9 Geo. 2, c. 36). Now,
entitled to the estate under the Statute of Distributions, it has long been settled that the proceeds of sale of real
in respect of any residue not expressly disposed of, estate are not pure personalty within the Act, and it would unless it shall appear by tbe will or any codicil thereto, seem that the decision of the Court of Appeal, that the
that the person so appointed executor was intended to share of a partner in land belonging to the partnership
take such residue beneficially. But section 2 provides that cannot be given by will to a charity, might have been
nothing in the Act shall affect or prejudice any right Tested on the footing that even if the share is personal
which any executor, if the Act had not been passed, estate it is such as being part of the proceeds of would have been entitled to, in cases where there is not sale of land, and as such cannot be given to a charity
| any person who would be entitled to the testator's except by the observance of the restrictions of the
estate under the Statute of Distributions, in respect of Charitable Uses Act. But this view is not referred to any residue not expressly disposed of. The effect of this in the judgment, and probably either did not occur to the
last section is clearly to retain the old law unaltered in court, or was rejected on account of difficulties arising in
cases where there are no next of kin, and so Vicereconciling it with the decision in Myers v. Perigal (2 D. | Chancellor Malins held. In this case, therefore, unless M. & G. 599) as to shares in joint-stock companies. The
there is something in the will to show an intention to court in Ashworth v. Munn based their judgment on the
the contrary, the executors will, as against the Crown, ground that the share of a deceased partner is “ a charge take the property for their own benefit. But it was conaffecting the land” within section 3 of the Charitable tended in the recent case that a direction in the will that Uses Act. “Whatever," said James, L.J.,“ is due upon
the testatrix's debts and funeral expenses should be paid taking the partnership accounts is a direct charge upon
by her executors showed an intention to the contrary. the land." The practical point to be observed is that
It was urged that this direction was equivalent to an the share of a testator in partnership land cannot be
expression that the purpose of the appointment was “to given by will to a charitable use.
see that my will is put in force," which words in Braddon v. Farrand (2 Russ. 87) were held to make the executors
trustees. But Vice-Chancellor Malins rejected this rather N RE ARTHUR, ARTHUR v. WYNNE, M.R., 28
iar-fetched argument, and took occasion to express his W. R. 972.
disapproval of the decision in Braddon v. Farrand. A difficult and interesting question was raised in this case. A man before his marriage, in 1873, covenanted with trustees to insure his life on or before July 2, 1875. Shortly before the latter date his life became uninsurable,
REVIEWS. and he died without having effected an insurance. In an action for the administration of his estate, the trustees
CHITTY'S STATUTES. claimed to rank as creditors against the estate for damages for breach of the covenant. Now, it is clear
CHITTY'S COLLECTION OF STATUTES OF PRACTICAL UTILITY, enough that if the covenant was to be construed as an ARRANGED IN ALPHABETICAL AND CHRONOLOGICAL ORDER, absolute covenant to effect an insurance on or before a
with Notes THEREon. The Fourth EDITION. By J. M. given day, it would be no answer to the claim for
Lely, Esq., Barrister-at-Law. Henry Sweet ; Stevens damages for breach of covenant to say that the coven.
& Sons. antor could not possibly have effected the insurance
We are glad to be able to express strong approval during a short time before the date specified. He had of this new edition of Chitty. A glance at the pages nearly two years within which he might have effected it, will show the extent to which the convenience of the and his representatives could not avail themselves of his reader has been consulted in the mechanical arrangeaeglect in order to escape liability on the covenant. But ments of the book. The type used is larger than in the was the covenant absolute ? Was it not subject to an im last edition; the heading of each page includes, besides plied condition that up to the date specified the life of the the main catch word, subsidiary words indicating more covenantor should continue to be an insurable life ? Con- accurately the subject of the Act given below; and in sidering the absolute terms of the covenant, the nature of all cases the date of the Act is given in bold figures in the contract, and what inust have been the fair contempla the heading, and the year and chapter in the margin. tion of the parties (namely, to insure a provision for This renders it easy for the practitioner to find the Act the wife and children), the Master of the Rolls thought he is in search of by means of the headings of pages that there was no implied condition of the kind sug | alone. Nor is this the only improvement which has gested. We confess, with great deference, that we should been introduced. Each subject upon which several have thought that the continuing insurability of the statutes are printed is prefaced with a list of the Acts covenantor's life was, to use the language of Blackburn, and a statemeut of their general object, with a reference J., in Taylor v. Caldwell (11 W. R. 726, 3 B. & S. 'to the pages at which they are to be found. Cross826), contemplated by the parties, at the time of enter- references are also given to other titles under which ing into the contract, as the very “foundation of what matter bearing upon the subject may be found. was to be done." It seems, as the damages were stated In the more important and difficult matter of the se·lection of the statutes to be printed, we think Mr. Lely subject, but one on which they have the advantage of has generally shown sound judgment. If he has erred the labours of several eminent text-book writers. Some of at all, it is on the safe side of giving too many Acts. the works of these writers, notably that by Mr. Phear, Thus he prints the Land Transfer Acts of 1862 and 1875, contain an unusual amount of that most rare of all which can hardly be said to be referred to in ordinary qualities in a law work-original and careful thought. practice, and in all probability, will not be alive a year But it is twenty years since Mr. Phear's book was pubhence. Still in face of the facts that Mr. Dart and his lished, and, with all its great merits, we believe it was editor have thought these Acts worthy of a long sum never very successful. It contains, we must admit, a mary, and that Mr. Prideaux has printed the Act of 1875 | good deal of ingenious twisting of cases to fit certain in full in the appendix to his Precedents, it would have theories propounded by the author; too much argubeen a bold measure to omit them from a collection of mentativo inference from cases, and too little clear disstatutes. So far as our investigation has yet gone, we tincticn between such inference and the positive law have not detected the omission of any statute of import stated by the writer. If more care had been taken to point. ance to the practitioner. With regard to the arrange out to the reader (by means of quotations from, or referment of the Acts, we are also generally well satisfied ences to, judgments) when the text was founded on che with the result of our examination of the book. It would, decisions of judges and when on the decisions of the of course, be easy to find instances where it appears to | learned author, the book would probably have met with us that the convenience of the reader could be better greater success. The authors of the present work cannot consulted by placing a particular statute under a differ- be said to err in this way. Their references to authorities. ent heading. We should, for instance, have placed 33 & are copious, and their extracts from judgments nume34 Vict. C. 44, “An Act to declare the stamp duty rous; while their speculations and criticisms are fow and chargeable on certain leases," under the head of far between. They avow in their preface their intention “ Stamps” ; or if this course was not adopted, we should to be to confine themselves, as far as possible, "to the have included under the head of “Leases," in addition decisions of the courts as expressed in the words of to this Act, 39 Vict. c. 16, and the portions of the Stamp learned judges.” If, however, their mode of dealing Act, 1870, relating exclusively to leases. And it would with their subject is unambitious, their conception of the certainly have been more convenient if the editor had subject is not so. They sweep into their net every abolished Mr. Chitty's rather unmeaning heading of topic connected with waters, including not only the sea, “Conveyances," and placed some of the matter under | but also bridges, and tolls, and rates. the familiar head of “ Vendor and Purchaser.” But Perhaps the fairest mode of testing the mode of execuconsidering the great difficulty which often arises in tion of the book will be to take an important recent case asdeciding as to the title under which a statute shall be to which the authors must have trusted wholly to their own placed, we think Mr. Lely may be congratulated on the judgment. The first decision we looked for was Hurdman generally successful way in which he has dealt with the v. North-Eastern Railway Company (26 W. R. 489, matter.
L. R. 3 C. P. D. 168), a case of no little interest on the The modern practice of legislation by orders places difficult question of striking the balance of justice and the editor of a book like that before us in considerable expediency between the rights of adjoining landdifficulty. If he prints all the orders, he swells his book owners. The case is accurately stated at page 133, and with matter which practitioners have on their shelves in the extent of the principle is given in the words of more handy volumes; if he omits all orders, he runs the Lord Justice Cotton. We do not understand, risk of being charged with rendering his book imperfect. however, why the important statement in the judgment Mr. Lely has very properly omitted the Bankruptcy of the ground of the non-liability of an upper-mine: Rules and the County Court Rules, but he has printed the owner for the flow of water to a lower mine should rules under a large number of other statutes, from the be relegated to a foot-note, instead of being added to: Debtors Act, 1869, to the Vaccination Act, 1874.
to the statement, on the next page, of Wilson v. IVaddell. The notes are terse and practical; and where, as in We do not think that ground is very satisfactory; but the case of the Trustee Acts, they are numerous, the it ought, at all events, to be brought to the knowledge lengthy expanses of notes which are to be found in former of the reader who consults the book for information as editions are avoided by the use of a smaller type. A to mines; and it should, moreover, be stated as having similar expedient would have been useful under been laid down in Hurdman's case, and not “ Charities," where the notes might also, with advantage, | merely as the suggestion of the authors. The case of have been somewhat fuller.
Holker v. Porrit (21 W. R. 414, 23 W. R. 400, L. R. 8 Ex. If anyone thinks that the completion of the Revised 115, 10 Ex. 59) seems to us to be inadequately stated Statutes has rendered Chitty unnecessary, he should and discussed; but it is hardly worth while to go turn to the heading “Land Tax” in the latter work, fully into the subject here. The authors have evidently and compare the ease with which he can there find set before themselves a modest standard, and, if judged any provision he wants with the difficulty he experiences i by this, they cannot be said to have been unsuccessful. in hunting out the Acts through the volumes of the It appears to us, from a perusal of a considerable part Revised Statutes, even with the aid of the Statute Index. of the work, that the statement of the law is generally The truth is that, independently of the fact that the accurate. Considerable pains have evidently been Revised Statutes come down only to 1868, there will bestowed on the book, and, although it has no pretenalways be an opening for a collection of statutes classifieds sions to originality or scientific arrangement, it will be according to subject. The practitioner has only to take a useful compendium of the law on a difficult subject. down one of the compact volumes of Chitty, and he has at once before him all the legislation on the subject in hand. Only those who have frequently to consult the
COMPANIES. statutes can understand the full benefit thus conferred ;
THE LAW AND PRACTICE OF JOINT STOCK AND OTHER Coxbut we imagine we have said enough to show that the
PANIES, &c., &c. By Sir HENRY THRING, K.C.B. remodelled Chitty deserves a place on the practising
Fourth EDITION. Edited by G. A. R. FITZGERALD, lawyer's shelves.
Barrister-at-Law. Stevens & Sons; H. Sweet ; Maxwell & Sons.
As the draftsman of the Companies Act, 1862, Sir H. WATERS.
Thring was able to give to his book more authority than W RELATING TO WATERS, SEA, TIDAL, AND IN- | usually attaches to annotated editions of statutes. He LAND. By H. J. W. COULSON and U. A. FORBES, Bar constructed his work on the principle of, first of all, risters-at-Law. H. Sweet.
giving a treatise on the Law of Companies, and then printThe authors of this volume bave chosen a difficult | ing the statutes, with notes to the sections. Both the treatise and notes have always appeared to us to be excellent specimens of workmanship; and after the modi.
CORRESPONDENCE. fications and additions introduced in the last edition by Mr. Fitzgerald-especially the largely increased notes to
THE LAW SOCIETY AND PARLIAMENTARY the Acts—the work took its place as one of the standard text-books on Companies. Since the last edition was
REPRESENTATION. issued there have been passed the three Companies Acts
[To the Editor of the Solicitors' Journal.] of 1877, 1879, and 1880. These are printed in full, and
Sir,-The suggestion that the profession or the Law are prefaced with notes explaining their cause and general
Society should be represented in Parliament is one, I object. These notes appear to us to be a very useful
think, well entitled to consideration. feature of the work; that on the Act of 1879 is exceed
Mr. Keen's paper on the subject will no doubt shortly ingly well done. There are also, of course, notes
be circulated, with the account of the society's transappended to the sections. The precedents in Appendix
| actions at Sheffield, when his reasons in support of the II., which are not the least useful part of the book,
suggestion can be more fully considered. have been added to. We may, however, suggest as desir.
I have, however, been led to look into the society's able the addition of object clauses and articles moulded
last annual report to see how far it affords any informawith special reference to the very common case now-a
tion showing that the council really require the aid of a days of the turning of a private business into a limited
parliamentary representative. The report refers at some company, in which the shares are to be held by a small
length to the amendment of the law of real property, number of persons, and the working of the company is
with special reference to the papers read at the Camas far as possible to resemble that of a private partner
bridge meeting, and explains the course pursued by the ship.
council with regard thereto.
It appears that the council were frequently in comTHE JUDICATURE ACTS.
munication with the Lord Chancellor upon the Bills THE SUPREME COURT OF JUDICATURE ACTS AND THE APPEL
which he introduced last February, respectively entitled LATE JURISDICTION ACT, 1876, WITH RULES OF COURT
the “Settled Lands Bill" and the “ Conveyancing and AND FORMS, TO MAY, 1880, ANNOTATED SO AS TO FORM A
Law of Property Bill." All the proposals of the council MANUAL OF PRACTICE ADAPTED CHIEFLY TO THE CHAN
were considered and many were adopted. CERY AND COMMON LAW DIVISION 8. By R. W. ANDREWS,
In referring to the exertions made by the council, the and A. B. STONEY, Barristers-at-Law. Reeves &
report hopes that the influence thus exercised will serve Turner.
to show that solicitors are not averse to the improvement This is a compact and handy edition of the Acts and
and simplification of the law, though it may involve a Rules; and as it includes all the rules, up to those pub
curtailment of their pecuniary privileges. Now I canlished in May last (the latest issued except the order as to
not help feeling that, in considering the details of the fees of search, &c., issued in September last), and has all
Lord Chancellor's Bills, the council would have been the rules placed under their proper orders, the book will
materially assisted if they could have secured the conbe well worth buying as a mere matter of convenience to
stant attention of a member directly representing the the practitioner. But the work has other merits. The
interests of the profession in the House of Commons, notes of cases appended to the sections and rules are very
and that the passage of the Bills would have been greatly condensed, but so far as we have tested them they appear
facilitated if they had reached the Lower House, supto be exceptionally intelligent and accurate. They are
posing they could have been authoritatively supported by very seldom mere copies of head-notes, and often indicate
such a member. Moreover, there are practical details
connected with the amendment of the law of real that the authors have considered the cases cited with care.
property of the greatest importance to clients, with
which solicitors only are competent effectually to deal. LEGAL DIARY.
Then, with regard to the remuneration of solicitors, THE LAWYER'S COMPANION AND DIARY AND LONDON AND
which was another subject considered by the council, there
are few questions of more practical importance both to PROVINCIAL LAW DIRECTORY FOR 1881. Edited by
solicitors and their clients. A member, therefore, ad. JOHN THOMPSON, Esq., Barrister-at-Law. Thirty-fifth
dressing the House of Commons, even on this comparaAnnual Issue. Stevens & Sons; Shaw & Sons.
tively small topic, as the representative of the profession, This well-known Diary needs to commendation be
could not fail to command attention and to contribute yond the simple announcement of its publication. We materially to the solution of this troublesome, and by have tested it by many years' use, and can testify that
no means easy, question. Somewhat similar remarks it is complete, accurate, and convenient.
apply to the many other important matters with which the society's report shows the council had been dealing
during the previous year. The space at your disposal In the Court of Appeal, on Tuesday, the Lord Chancellor necessarily prevents my referring to them in detail. and the Attorney-General paid a tribute of esteem to the Those, however, of your readers who care to pursue the late Lord Justice Thesiger. The Lord Chancellor said that matter further can consult the report and satisfy themthe late Lord Jagtice “ was advanced to this Court of Appeal selves upon the point. But I venture to submit that at a very early age in comparison with the age at which in the consideration of many of the matters from time men Oscally attain to distinction, and after a professional to time deliberated upon by the council, the assistance -career, brilliant indeed, but comparatively short. In of a parliamentary representative would prove of great another man so rapid and so early an advancemert migbt, value and materially promote the result which the perbapa, bave provoked some envy, but with him it was
council might desire to attain. In addition, I apprehend attained with universal goodwill. While he sat on the
frequent references are made to the council by members bench be fully justified the discernment of those who ad
outside the council, which, in order to be adequately vised the Crown to promote bim, by his knowledge, by his
disposed of, would probably render it necessary to put learning, by his patienoe, by his industry, and by that un. failing modesty and dignity of demeanour which in him no
a question in the House of Commons. circumstances could change. While he lived he did good
At the present time there ie no member by whom the work and well sustained the reputation of the bench while
council can require the requisite interrogatory to be he sat here, and the public hoped that it would for many | put. Again, the Lord Chancellor, or the Attorneyyears have had the advantage of his wisdom and his virtue. General for the time being, may differ from the council These bopes have now been disappointed, and all that it re as to the necessity for, or the contents of, a Bill. It mains for me to say is that we shall loog deplore bis loss, may be that the council is right, and that the Lord Chan. and sball ever affectionately regard his memory."
i cellor or the Attorney-General is wrong. Surely in order to arrive at a satisfactory conclusion it would seem just Law Society in October next. Various proposals have for there to be some member officially to announce, and been made, but I venture to think that the suggestion to enforce, the views of the council upon the particular of a “ purse,” thrown out by me at Sheffield (which was point. I know of no body so much consulted as the immediately indorsed by a knot of acquaintances), has council on matters affecting legislation. If it is right not been improved upon at present. that all professions should possess a parliamentary There is little doubt that an entertainment at Londonrepresentative, that is an additional reason, but very far super-Mare is likely to attract a large number of solicifrom being the only reason, for accepting Mr. Keen's tors from all parts of England, especially in the month proposal. In all commissions affecting the administra- of October, when many of us visit Brighton almost as of tion of justice, or the amendment of the law in any course. It would not surprise me if the attendance far particular upon which it is probable that a solicitor may exceeds that at any of the other towus—perhaps, indeed, be consulted, it is now almost the invariable rule to it will be greater than if the congress were held in invite the president, or some other member of the London itself, making the tax upon the limited resources council, to become a member of the commission.
of Brighton obviously out of all proportion. I think there is great force in the remark of “One Of course, it may be said that our Sussex friends have who was Present" that solicitors now in Parliament calculated all this, and that it is beyond our province ta must, in the first place, consider their duty to their intervene ; but the circumstances are of a very excep. constituents. Mr. Whitley, the member for Liverpool, tional character, and I do not think that Brighton would is no doubt quite willing to give to the council all the lose any of its dignity by accepting a contribution in a parliamentary assistance in his power. With, however, the lump sum from London men. This need not interfere duties of so large a constituency as Liverpool, which is with the help from the Law Society on certain heads. so deeply interested in mercantile matters and legisla- A large number of town solicitors would, I think, be tion generally, it is not to be expected that Mr. Whitley, willing to subscribe a guinea or more to a fund, whilst or, indeed, any solicitor in Parliament, can give the many would probably hesitate to pay a fixed price for a time and attention of which the council has probably dinner ticket (even if Brighton would listen to such a often stood in need.
suggestion, which I doubt), for this process would tend I confess that until Mr. Keen drew attention to the to destroy the sentiment of an “invitation" and create suggestion it had not occurred to me. It is certainly an awkward precedent. I know several men who would worthy of full consideration. If the profession should willingly form a committee if this proposal to start a become entitled to be represented in Parliament, surely subscription meets with any general approval. that candidate would be elected who should appear most
FRANCIS K. MUNTON. fitted by his judgment, experience, knowledge, and 3, Lambeth-hill, Queen Victoria-street, Nov. 1, 1880. ability, to command the attention of the House. He
P.S.-The foregoing was written before I had had an. might be a Liberal-Conservative or a Conservative
opportunity of reading the letters in your columns of Liberal; and although, in the event of a contest,
the 23rd and 30th of October. Such letters, however, do politics would influence the result, yet no such member
not much touch my particular point, and I will only just would stand the chance of being re-elected if he should
add that I was the individual alluded to as having sugprove a failure, no matter what might be his political
gested to our friend Mr. Howlett (at the Chatsworth views.
lunch) that he might expect a thousand visitors at I repudiate entirely the idea that the adoption of the
Brighton, and I do not think I shall be far out in my
Bri proposal would introduce into our ranks an element of
F. K. M. political antagonism. The election would be quietly conducted in the same manner as the election of mem. bers for the Universities. Exertions would, of course, be made on behalf of opposing candidates by their supporters, after the same fashion, I suppose, as is now frequently done to secure the election of a particular LEAVE TO APPEAL OBTAINED BY Person NOT A PARTY member to the council. For my own part, I like to see to ACTION.-In a case of Markham v. Markham, before the exertions of this kind. They tend to show that the | Court of Appeal on the 2nd inst., the question arose how leave members of our profession are not so apathetic as they to appeal from an order was to be obtained by a person who used certainly to be, and that they really take an interest was interested in the subject-matter of an action, bat who was in the election. It is because in times gone by we have
not a party to it. The action was an administration one, been so wrapped up in our own individual and separate
and an order had been inade on further consideration de interests that we have sometimes failed to rise in the esti
claring that the residuary estate of the testator was, on the mation of the public to the true dignity of the important
true construction of his will, divisible among such of his
brothers and sisters and the brothers and sisters of his wife position we occupy in the manifold duties of their daily
as had survived the wife, and such of the children as had life. Thanks to the efforts of the council, especially in
survived the wife of such brothers and sisters of the testator recent years, and growing in importance every year, and the brothers and sisters of the wife as were living much has been accomplished. There yet remains ground at the date of the will, and had subsequently died in the lifeto be covered which only our own apathy can prevent us time of the testator, or in the lifetime of the wife. One of from occupying.
the sisters of the widow had died before the widow, leaving There are, of course, objections which may be urged one child, who had also died before the widow. This child against Mr. Keen's proposal. I am by no means disposed claimed to be entitled under the will to a share of the at any time to arrive at a hasty conclusion. I should like, testator's residue; and he had made an assigoment of his therefore, to hear from some of your correspondents,
interest. The assignee was not a party to the action, and who may have given attention to the matter and have
had not been served with notice of the decree, and upon the come to an unfavourable conclusion, what are the
| bearing on further consideration be was in no way represented.
He desired to appeal from the order on furtber consideration, grounds upon which they think that Mr. Keen's proposal
and he applied by motion ex parte to the Court of Appeal for should not be adopted, or why, if right theoretically, it is
leave to appeal. It was urged on his behalf that under the nevertheless impracticable ?
old practice in the Court of Chancery, as shown by the case of Parmiter v. Parmiter (2 D. F. & J. 526), leave to appeal
in such a case would have been obtained by an ex parte THE BRIGHTON MEETING.
petition or motion in the Court of Appeal, and that, inas[To the Editor of the Solicitors' Journal.]
| much as no provision on the subject is contained in the
Judicature Acts or rules, the old practice still remains. The Sir,-A discussion has arisen in several quarters as to Court (Lord SELBORNE, C., and Brett and COTTON, L.JJ.), the probable tax upon our Brighton friends incident to acceded to this view, and gave leave to appeal upon productheir generous offer to receive the Incorporated tion to the registrar of an affidavit of the title of the:
CASES OF THE WEEK.
applicant to the interest of the deceased child.-SOLICITORS, company to stay the drawing up of an order made by Duncan, Warren, Gardner.
Pollock, B., sitting as Vacation Jodge, on September 8, which discharged, as alleged, a previous order of the
Master of the Rolls for the winding op of tbe company, TIME FOR APPEALING-POWER OF ADMINISTRATOR TO made on the 24th of July, and that the carriage of such SELL REAL ESTATE.-In a case of In re Clay and Tetley, last-mentioned order might be given to the applicant. before the Court of Appeal on the 3rd inst., the question
The facts were as follows:-It appeared that three peti.. was raised whether an appeal bad been brought in time. A
tions were presented to the Master of the Rolls to wind op summons uoder the Vendor and Purchaser Act, 1874, was
the company by Metz, Hill, and Sadler. On the 24th of taken out by a vendor asking that the purchaser's requisitions
July a winding-up order was made on Metz and Hill's and objections in respect of the title to the property con
petitions, but an arrangement was made giving liberty tracted to be sold had been sufficiently answered by the
to the company to move to discbarge the order if vendor, and that a good title bad been shown in accordance
tbə two petitioners were settled with within a week. On: with the contract. On the hearing of this summons, Hall,
the 31st of Jaly, the two petitioners having been V.C., made an order that “this court, being of opinion that
paid, a motion was made to discharge the winding-up order, a good title has not been shown to the said hereditaments,
and the Master of the Rolls then discharged the winding-op doth not think fit to make any order on the said application,
order in Metz and Hill's petitions, but made a winding-up but doth order that the applicant do pay” the purchaser's
order on Sadler's petition, giving leave to the company to costs of the application. This order was pronounced on the
move to uischarge such order in payment before the Vacation 26th of June. Notice of appeal by the vendor was served
Judge. It appeared that on the 31st of July, notwithstanding on the purchaser on the 17th of July (a Saturday),
notice by the company that they intended to pay off Metz. but not till after two p.m. The purchaser took the
and Hill's petitions, a winding.vp order on these two objection that the appeal was too late. The court
petitions was passed and entered, the order being in the (JESSEL, M. R., and James and COTTON, L.JJ.) held that
usual form, and without reserving any liberty to the company the order contained in substance a declaration of the
to discharge the order within a week. When the application rights of the parties, and that consequently it was not a
to the Master of the Rolls on the 31st of July was made, the simple refusal, and the time for appealing did not ron
company did not know that he order had been passed and from tbe date of the pronouncing of the order, but from
entered. On the 8th of September, on the ev parte applicathe date of its completion. JESSEL, M.R., said that when.
tion of the company in pursuance of the liberty reserved, and ever an order contained a declaration as such, or as an as Sadler's debt had been paid, Pollock, B., discharged the expression of the opinion of the court, so as to bind tbe winding-up order of the 31st of July. On the 29th of rights of the parties, it did not amount to a simple refusal September a creditor of the company moved to slay theBD as to compel the bringing of an appeal within twenty. | drawing up of Pollock B.'s order, and after some discussion, one days from the date of the pronouncing of the order. it was arranged that the motion should stand to the 2nd of On the merits of the case, the question was whether an | November, without prejudice to any question ; things in the administrator cum testamento annexo could sell real estate meantime to remain in statu quo, and ihe order of the 8th of of the testator for the purpose of paying his debts, the September not to be drawn up. The creditor bad filed an personal estate being insufficient. The testator by his affidavit in the application, in wbich he stated he was in-. will directed tbat his debts should be paid by his execators formed and believed that the Master of the Rolls bad. thereinafter Damed, and, in case bis personal estate was directed the drawing up of the order to be suspended for a. ingofficient for that purpose, then be obarged his real week, to enable the company to pay off the petitioners, but estate witb the payment of the deficiency. He then made that as the company had not done go, the order had been beneficial devises and bequests of his real and personal passed and entered, and that on the 8th of September an. estate, and appointed two persons executorg. After his application was made to Pollock, B., to discharge the order death the persons named as exeoators renounced probate, of the 24th of July, on the ground that the company bad and letters of administration, with the will annexed, were paid off the petitioner's debts, and that there being no granted to the testator's widow. The personal estate | opposition, the judge had discharged the order of the Master was ingofficient to pay the testator's debts, and the of the Rolls. The applicant also submitted that the payadministratrix entered into a contract to sell a part ment by the company of Sadler's debt after the winding-up of the real estate. The purchaser objected that the order was improper, and that the winding-up order operated administatrix had no implied power under tbe will to sell | in favour of all the creditors. The applicant, therefore, the real estate either independently of the provisions of sec. | asked to have the conduct of the winding-up order given to tion 16 of the Act 22 & 23 Vict. c. 35, or by virtue of him. JESSEL, M. R., in refusing the motion, did not those provisions. Hall, V.C. held that the objection was ca!l upon the company's couosel, and said the costs well founded, and the Court of Appeal (JESSEL, M.R., and must follow the event. He said that he had granted. JAMES and COTTON, L.JJ.) affirmed the decision. JESSEL, leave to the company, the sole respondents in M.R., said that a power io sell the real estate of a testator Metz aod Hill's petitions, to move to discharge for payment of his debts was implied in executors, because the order made on payment of their respective debts they were appointed by the will to pay the debts. They with costs within a week, and such orders be frequently were the nominees of the testator, and if his personal estate made. The order, therefore, of the 24th of Jaly ought was insufficient to pay bis debts, they had an implied power either not to have been drawn up for a week, or if drawn to sell bis real estate. But there was no authority showing up within the week should bave contained a reservation of that the court bad ever implied such a power in an adminis the liberty to move to discharge it. The order bad, howtrator wbo was not appointed by the testator but was an ever, been passed and entered by the petitioners' solicitor officer of the Probate Court. The testator could not be on the 31st of Jaly, and this must have been through some supposed to have anticipated that his executors would re misapprebepsion, as on the 318i of July the order of the nounce probate. It would not be right that the court | 24th of July was discharged, and there was an end of the should now for the first time imply such a power in the wbole matter, except that tbere was another petition on officer of the court. And, as to section 16 of the Act, it was wbich an order was made on the 31st of July, but leave tocarefully framed so as to confine the power given by it to disobarge that order before the Vacation Judge bad again executors and persons on whom the execatorship should been given by bim. That petitioner was also paid, and the devolve. It was impossible to suppose that the Legislature winding up order of the 31st of July was quite properly had forgotten tbat there were such persons as administrators, discbarged by Mr. Baron Pollock. Another creditor, howand there was so ground for giving to the words of the
ever, discovered that the winding-up order bad been section any meaning but their natural one.-SOLICITORS,
passed and entered, and then assumed erroneously that Dubois & Reid ; Gard, Corbin, Hall.
such order had been dischsrged by Mr. Baron Pollock without any jurisdiction to do 80. It appeared
to him that the applicant must take the consequence of the ALTERATION OF ORDER WIEN PASSED AND ENTERED mistake he had made, as he might very easily have gone to. LEAVE TO MOVE FOR DISCHARGE OF WINDING-UP ORDER
the company's solicitor and a certained the facts as to the FORM OF ORDER.-In a case of Re Flagstaff Silver Mining
several orders. No solicitor should assume that a judge Company of Utah (Limited), before the Master of the Rolls would discharge the final order of another judge without on tbe 2ud ipsl., a ruotion was made by a creditor of the jurisdiction, and it certainly did appear as if the creditor